Bill Text: TX HB248 | 2023-2024 | 88th Legislature | Comm Sub

---

Bill Title: Relating to solicitation of patients and other prohibited marketing practices and the establishment of the task force on patient solicitation; increasing criminal penalties.

Sponsorship: Partisan Bill (Republican 2)

Status: (Engrossed - Dead) 2023-05-24 - Removed from local & uncontested calendar [HB248 Detail]

Download: Texas-2023-HB248-Comm_Sub.html

---

By: Murr (Senate Sponsor - Kolkhorst) H.B. No. 248
(In the Senate - Received from the House May 10, 2023;
May 11, 2023, read first time and referred to Committee on Health &
Human Services; May 19, 2023, reported favorably by the following
vote: Yeas 8, Nays 0; May 19, 2023, sent to printer.)
Click here to see the committee vote

COMMITTEE VOTE
YeaNayAbsentPNV
KolkhorstX
PerryX
BlancoX
HallX
HancockX
HughesX
LaMantiaX
MilesX
SparksX
A BILL TO BE ENTITLED
AN ACT
relating to solicitation of patients and other prohibited marketing
practices and the establishment of the task force on patient
solicitation; increasing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle E, Title 2, Health and Safety Code, is
amended by adding Chapter 110 to read as follows:
CHAPTER 110. TASK FORCE ON PATIENT SOLICITATION
Sec. 110.001. DEFINITION. In this chapter, "task force"
means the task force on patient solicitation created under this
chapter.
Sec. 110.002. PURPOSE. The task force is established to
study and make recommendations on preventing conduct that violates
Chapter 164 of this code or Chapter 102, Occupations Code, and to
improve enforcement of those chapters.
Sec. 110.003. MEMBERSHIP. (a) The task force is composed of
eight members as follows:
(1) four members the executive commissioner appoints;
and
(2) four members the attorney general appoints.
(b) Each task force member must have expertise in the field
of health care or advertising.
(c) Task force members serve without compensation.
Sec. 110.004. ADMINISTRATIVE ATTACHMENT. The task force is
administratively attached to the commission.
Sec. 110.005. ACCESS TO INFORMATION; CONFIDENTIALITY OF
PROVIDED INFORMATION. The attorney general and the commission shall
provide the task force with information the task force requests to
allow the task force to fulfill its duties. Information provided
under this section is confidential and is not subject to disclosure
under Chapter 552, Government Code.
Sec. 110.006. REPORT. Not later than December 1 of each
even-numbered year, the task force shall submit to the legislature
a report that includes:
(1) a summary of civil or criminal actions brought on
behalf of the state and administrative actions by state regulatory
agencies in the preceding biennium for conduct that violates
Chapter 164 of this code or Chapter 102, Occupations Code; and
(2) legislative recommendations for preventing
conduct that violates Chapter 164 of this code or Chapter 102,
Occupations Code, and improving enforcement of those chapters.
SECTION 2. Section 164.002, Health and Safety Code, is
amended to read as follows:
Sec. 164.002. LEGISLATIVE PURPOSE. The purpose of this
chapter is to safeguard the public against fraud, deceit, and
misleading marketing practices and to foster and encourage
competition and fair dealing by mental health facilities and
chemical dependency [treatment] facilities by prohibiting or
restricting practices by which the public has been injured in
connection with the marketing and advertising of mental health
services and the admission of patients. Nothing in this chapter
should be construed to prohibit a mental health facility or
chemical dependency facility from advertising its services in a
general way or promoting its specialized services. However, the
public should be able to clearly distinguish between the marketing
activities of the facility and its clinical functions.
SECTION 3. Section 164.003(1), Health and Safety Code, is
amended to read as follows:
(1) "Advertising" or "advertise" means a solicitation
or inducement, through print or electronic media, including radio,
television, the Internet, or direct mail, to purchase the services
provided by a treatment facility.
SECTION 4. Section 164.006, Health and Safety Code, is
amended to read as follows:
Sec. 164.006. SOLICITING AND CONTRACTING WITH CERTAIN
REFERRAL SOURCES. A treatment facility or a person employed or
under contract with a treatment facility, if acting on behalf of the
treatment facility, may not:
(1) contact a referral source or potential client for
the purpose of soliciting, directly or indirectly, a referral of a
patient to the treatment facility without disclosing its soliciting
agent's, employee's, or contractor's affiliation with the treatment
facility;
(2) offer to provide or provide mental health or
chemical dependency services to a public or private school in this
state, on a part-time or full-time basis, the services of any of its
employees or agents who make, or are in a position to make, a
referral, if the services are provided on an individual basis to
individual students or their families. Nothing herein prohibits a
treatment facility from:
(A) offering or providing educational programs
in group settings to public schools in this state if the affiliation
between the educational program and the treatment facility is
disclosed;
(B) providing counseling services to a public
school in this state in an emergency or crisis situation if the
services are provided in response to a specific request by a school;
provided that, under no circumstances may a student be referred to
the treatment facility offering the services; or
(C) entering into a contract under Section
464.020 with the board of trustees of a school district with a
disciplinary alternative education program, or with the board's
designee, for the provision of chemical dependency treatment
services;
(3) provide to an entity of state or local government,
on a part-time or full-time basis, the mental health or chemical
dependency services of any of its employees, agents, or contractors
who make or are in a position to make referrals unless:
(A) the treatment facility discloses to the
governing authority of the entity:
(i) the employee's, agent's, or
contractor's relationship to the facility; and
(ii) the fact that the employee, agent, or
contractor might make a referral, if permitted, to the facility;
and
(B) the employee, agent, or contractor makes a
referral only if:
(i) the treatment facility obtains the
governing authority's authorization in writing for the employee,
agent, or contractor to make the referrals; and
(ii) the employee, agent, or contractor
discloses to the prospective patient the employee's, agent's, or
contractor's relationship to the facility at initial contact; [or]
(4) in relation to intervention and assessment
services, contract with, offer to remunerate, or remunerate a
person who operates an intervention and assessment service that
makes referrals to a treatment facility for inpatient or outpatient
treatment of mental illness or chemical dependency unless the
intervention and assessment service is:
(A) operated by a community mental health and
intellectual disability center the commission funds [funded by the
department and the Department of Aging and Disability Services];
(B) operated by a county or regional medical
society;
(C) a qualified mental health referral service as
defined by Section 164.007; or
(D) owned and operated by a nonprofit or
not-for-profit organization offering counseling concerning family
violence, help for runaway children, or rape; or
(5) contract with a marketing provider who agrees to
provide general referrals or leads for the placement of prospective
patients with a service provider or in a recovery residence through
a call center or Internet website presence, unless the terms of that
contract are disclosed to the prospective patient.
SECTION 5. Section 164.010, Health and Safety Code, is
amended to read as follows:
Sec. 164.010. PROHIBITED ACTS. It is a violation of this
chapter, in connection with the marketing of mental health
services, for a person to:
(1) advertise, expressly or impliedly, the services of
a treatment facility through the use of:
(A) promises of cure or guarantees of treatment
results that cannot be substantiated; or
(B) any unsubstantiated claims;
(2) advertise, expressly or impliedly, the
availability of intervention and assessment services unless and
until the services are available and are provided by mental health
professionals licensed or certified to provide the particular
service;
(3) fail to disclose before soliciting a referral
source or prospective patient to induce a person to use the services
of the treatment facility an affiliation between a treatment
facility and its soliciting agents, employees, or contractors;
(4) obtain or disclose information considered
confidential by state or federal law regarding a person for the
purpose of soliciting that person to use the services of a treatment
facility unless and until consent is obtained from the person or, in
the case of a minor, the person's parent, managing conservator, or
legal guardian or another person with authority to give that
authorization; [or]
(5) represent that a referral service is a qualified
mental health referral service unless and until the referral
service complies with Section 164.007;
(6) make a false or misleading statement or provide
false or misleading information about the facility's services or
location in the facility's advertising media or on its Internet
website; or
(7) provide a link on the facility's Internet website
that redirects the user to another Internet website containing
false or misleading statements or information described by
Subdivision (6).
SECTION 6. Section 164.011(a), Health and Safety Code, is
amended to read as follows:
(a) If it appears that a person is in violation of this
chapter, the attorney general, a district attorney, or a county
attorney may institute an action for injunctive relief to restrain
the person from continuing the violation and for civil penalties of
not less than $2,000 [$1,000] and not more than $25,000 per
violation.
SECTION 7. Section 102.001, Occupations Code, is amended to
read as follows:
Sec. 102.001. SOLICITING PATIENTS; OFFENSE. (a) A person
commits an offense if the person knowingly offers to pay or agrees
to accept, directly or indirectly, overtly or covertly any
remuneration in cash or in kind or any benefit or commission to or
from another for securing or soliciting a patient or patronage for
or from a person licensed, certified, or registered by a state
health care regulatory agency.
(b) Except as provided by Subsection (c), an offense under
this section is a state jail felony [Class A misdemeanor].
(c) An offense under this section is a felony of the second
[third] degree if it is shown on the trial of the offense that the
person:
(1) has previously been convicted of an offense under
this section; or
(2) was employed by a federal, state, or local
government at the time of the offense.
SECTION 8. Section 102.004, Occupations Code, is amended to
read as follows:
Sec. 102.004. APPLICABILITY TO ADVERTISING. Section
102.001 does not prohibit advertising, unless the advertising is:
(1) false, misleading, or deceptive; [or]
(2) not readily subject to verification, if the
advertising claims professional superiority or the performance of a
professional service in a superior manner; or
(3) prohibited under Chapter 164, Health and Safety
Code, as applicable.
SECTION 9. Section 102.006, Occupations Code, is amended to
read as follows:
Sec. 102.006. FAILURE TO DISCLOSE; OFFENSE. (a) A person
commits an offense if:
(1) the person, in a manner otherwise permitted under
Section 102.001, accepts remuneration, a benefit, or a commission
to secure or solicit a patient or patronage for a person licensed,
certified, or registered by a state health care regulatory agency;
and
(2) does not, at the time of initial contact and at the
time of referral, disclose to the patient:
(A) the person's affiliation, if any, with the
person for whom the patient is secured or solicited; and
(B) that the person will receive, directly or
indirectly, remuneration, a benefit, or a commission for securing
or soliciting the patient.
(b) Except as provided by Subsection (c), an offense under
this section is a state jail felony [Class A misdemeanor].
(c) An offense under this section is a felony of the second
[third] degree if it is shown on the trial of the offense that the
person:
(1) has previously been convicted of an offense under
this section; or
(2) was employed by a federal, state, or local
government at the time of the offense.
SECTION 10. Sections 102.051(a), (b), and (c), Occupations
Code, are amended to read as follows:
(a) A person commits an offense if the person:
(1) practices the art of healing with or without the
use of medicine; and
(2) employs or agrees to employ, pays or promises to
pay, or rewards or promises to reward or provide any benefit or
commission to another for soliciting or securing a patient or
patronage.
(b) A person commits an offense if the person accepts or
agrees to accept anything of value or any benefit or commission for
soliciting or securing a patient or patronage for a person who
practices the art of healing with or without the use of medicine.
(c) An offense under this section is a Class B misdemeanor
[punishable by a fine of not less than $100 or more than $200]. Each
violation of this section is a separate offense.
SECTION 11. The changes in law made by this Act apply only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect on the date the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 12. This Act takes effect September 1, 2023.
* * * * *